Select Committee on Public Administration Third Report


EXCLUSIONS

23. The White Paper says that Freedom of Information "as a fundamental element of our policy to modernise and open up government, should have very wide application".[36] The proposals are, it claims, designed to replace the previous "piecemeal and inadequate system with clear and consistent requirements which would apply across government".[37] We have been impressed by the breadth of the White Paper's commitment to Freedom of Information. But this has made the Government's decision to exclude certain bodies and classes of information altogether from the scope of the proposed Act all the more regrettable. This means that the information will not be accessible at all, unless it is voluntarily made public or is required under other statutory provisions; there will be no opportunity to request the information or to weigh the public interest in its provision against the public interest in withholding it. The Information Commissioner will not have access to such information. The proposed exclusions constitute, the Campaign for Freedom of Information argue, a "serious weakness" in the proposals. They are, it says, inconsistent with the White Paper's "stated intention of ensuring that decisions are based on the contents of the individual record, and not the class into which it falls".[38] As we have already pointed out, the exclusions mean that in a few areas, the degree of access will actually be reduced from that under the Code of Practice on Access to Government Information. There are two types of exclusion discussed in the White Paper. The first consists of classes of information which will be excluded altogether—for example information relating to law enforcement. The other consists of organisations which will be left out of the scope of the Bill entirely.

"Class" exclusions

24. The most controversial of these exclusions is information relating to law enforcement. Freedom of Information, the White Paper says, "should not undermine the investigation, prosecution or prevention of crime, or the bringing of civil or criminal proceedings by public bodies". In particular, it mentions the need to avoid "prejudicing effective law enforcement, the need to protect witnesses and informers, the need to maintain the independence of the judicial and prosecution processes, and the need to preserve the role of the criminal court as the sole forum for determining guilt". The exclusion will cover not only the police and prosecuting authorities, but also other bodies responsible for law enforcement—such as the Department of Social Security and the Immigration Service.[39]

25. This exclusion has been criticised by a number of organisations, and has deeply worrying implications. Miscarriage of justice cases unresolved because of the difficulty of extracting information out of the criminal justice system are legion. The National Consumer Council said, "inaccurate information and poor practice (malicious prosecutions, assaults in custody) can do a good deal of damage, and where problems come to light fairly regularly in ways that suggest they may not be isolated incidents".[40] In other countries with Freedom of Information regimes, information relating to law enforcement is not excluded, but is subject to a normal exemption provision, so that refusals to disclose information may be tested, either by an Information Commissioner or the courts.

26. There are two further difficulties with this exclusion. First, the White Paper says that the exclusion will cover information relating to the investigation and prosecution functions of "other bodies carrying out law enforcement work", apart from the police. There are many bodies which carry out law enforcement work of one sort or another. The Environment Agency, for example, is heavily involved in enforcing various pieces of legislation. In this case, Dr Clark told us that "we want to bring in most of the environmental disclosure which is from other legislation within the scope of this Bill. We do not see it as a way of withholding the investigative procedure... we certainly do not want it to be the case that there is blanket protection against all the investigatory bodies. That certainly is not the case".[41] We have been left in some confusion about the scope of the exclusion and believe that it needs to be very clear whether it applies to all the authorities covered by the Act, or only some of them. Law enforcement is, also, one of the "specified interests" that may permit exemption from disclosure; there are therefore two routes protecting information relating to law enforcement. Will the full exclusion apply to some types of law enforcement function, and mere exemption to others?

27. Second, the exclusion does not cover the "administrative functions of the Police and Police Authorities", which are specifically said to be included in the Act.[42] We find the distinction between administrative functions and law enforcement functions a very difficult one to draw. It is reminiscent of a distinction between "policy" and "operations" which has proved unsustainable in the past. Will, for example, policy relating to law enforcement be an "administrative function" or a law enforcement function? The Guild of Editors suggest further examples: "information about the number of police deployed in a particular locality would be of considerable public interest to those living there, but would it be denied because it was considered to deal with law enforcement rather than administration and could reveal that there was an insufficient police presence? Requests about the number of complaints made against officers based at a particular police station could be refused, because it was claimed that it could effect the effectiveness or morale or public authority of the police from that station in their dealings with the local community".[43]

28. We asked Mr Jack Straw, the Home Secretary, what sort of information would be covered by the law enforcement exclusion. He was asked whether there needed to be protection, for example, for information relating to the adequacy of policing arrangements outside a football ground following an incident in the crowd; to the reasons why the police had failed to respond promptly to a 999 call; to the excessive use of CS gas in inappropriate circumstances, or an improper disclosure to an employer of confidential information by the police in respect of a spent conviction. He argued that all of these pieces of information required to be kept confidential: "they all impinge upon the central issue. Questions, for example, which appear to be prosaic, like the numbers of police officers who are outside a football ground, go to the strength of that force in that area" (though Mr Straw appeared to undermine the point by saying that "the general information is in any event available about the number of officers in a force and within a sub-division").[44] He said that "if you openly provide intelligence about the total numbers of police officers available, then that would be used by the criminals involved": this concern appears misplaced as the information would only be available after the event, not before it.[45]

29. Mr Straw argued that the exclusion was necessary because some of the information which he thought had to remain confidential would have to be disclosed if it was necessary to prove that disclosure would cause "substantial harm" in order to withhold it. If it was only necessary to show that "harm" would arise from disclosure—the "simple harm" test—the blanket exclusion was not so necessary: "if you have a simple harm test, then it is possible to have more things testable in the courts. If you go for a substantial harm test, then as far as I am concerned the public interest requires that matters relating to law enforcement, investigations and prosecutions have to be exempted altogether". The White Paper proposals already provide for an exemption (in addition to the exclusion) for information relating to law enforcement. Furthermore, the requirement that the right of access to information under the Freedom of Information Bill should not contradict the restrictions on unauthorised disclosure in the Official Secrets Act (see below, paras. 77 to 82) limits further in practice the degree to which information on law enforcement activities is likely to be disclosed. In effect, this means that such information would not be disclosed if disclosure could "impede" those activities (as opposed to cause "substantial harm" to them, as the ordinary exemption provided under the Freedom of Information Act would imply). This seems entirely adequate to protect all information in this class which needs to be protected.

30. The basis of the Home Secretary's argument is that the relative liberality of subjecting the case against disclosure of any relevant information to the "substantial harm" test is in itself an argument for having to exclude totally the more "sensitive" information. But it would be possible to provide for this more sensitive information to be subject to the stricter "simple harm" test. Although it means having two categories of harm test instead of one, that is in fact no more complicated than having a substantial harm test and the residual area of information covered by a blanket exclusion. The advantage of having the simple harm test applying to the information the Government now proposes should be excluded altogether is that the Information Commissioner would have the opportunity to review individual cases and to adjudicate on them, something he would not be able to do to "excluded" information. We recommend that information relating to law enforcement should not be subject to total exclusion from the Freedom of Information Act. Instead, we recommend that it should be disclosable, subject to a test of "harm", rather than of "substantial harm". This would bring it into line with the existing Code of Practice.

31. Another of the exclusions is of "legal advice obtained by the government from any source or any other advice within government which would normally be protected by legal professional privilege".[46] The use of "government" (rather than public authorities) here seems to imply that this exclusion is intended to apply only to legal advice obtained by central government—not to that obtained by local authorities, or the other public authorities to which the Act is to apply. If this is true, it is unclear why it should be important to exclude legal advice obtained by the Government but not that obtained by other bodies. More broadly, it is difficult to understand the reason for this exclusion. In other Freedom of Information regimes, information covered by legal professional privilege is usually covered by an exemption, and is therefore subject to review, rather than excluded altogether, but even this has been much criticised. The Canadian Information Commissioner has said that a similar protection for legally privileged documents[47] there is "unsatisfactory": "most legal opinions, however stale, general or uncontroversial, are jealously kept secret. In the spirit of openness, the Government's vast storehouse of legal opinions on every conceivable subject should be made available to interested members of the public. Tax dollars are paid for these opinions and, unless an injury to the conduct of government affairs could reasonably be said to result from disclosure, legal opinions should be disclosed".[48]

32. The Campaign for Freedom of Information says that the rationale of legal professional privilege is to ensure that clients can seek legal advice in confidence without fear that their communications with their lawyer may become available to an opposing party in litigation. Essentially, they say, the rationale is the same as that for preventing the disclosure of policy advice—to protect the frankness of such communications. They propose, therefore, that it be simply subject to a harm test—perhaps a specific exemption relating to an authority's position in litigation. A harm test would, they argue, protect legal opinions which related to current or contemplated litigation affecting the authority, but it would not prevent disclosure where there is no prospect of litigation—"for example where the matters have been concluded and there is no possibility of related causes following". We agree. We note that the extent to which legal professional privilege may be claimed is in any case limited; it cannot, it has been determined, be successfully claimed for a statutory report where public interest immunity has not and could not be claimed.[49] We recommend that information which consists of legal advice obtained by a public authority, or which would normally be protected by legal professional privilege, should not be excluded from the Freedom of Information Act. Instead, it might be protected by being listed as a separate "specified interest" which could justify exemption, with the presumption that any disclosure of a document that was legally privileged would cause "substantial harm" to the integrity of the relationship between lawyer and client, and therefore such documents would be withheld.

33. The White Paper says that personnel records of public authorities need to be excluded from the Act because "Allowing civil servants and other public sector employees a right of access to their personnel files under the FOI Act would, among other things, result in public and private sector employees having different statutory rights".[50] Both public and private sector employees already have access to their employment records held on computer under the Data Protection Act, and will receive, under the new Data Protection Bill, access to certain "manual" files as well. The Campaign for Freedom of Information argues that both public and private sector employees should be able to gain access to manual personnel records to a greater degree than will be provided for in the Data Protection Bill. In lieu of that, it suggests that the Freedom of Information Act should permit public sector employees to see their personnel files, even if a similar right is not yet available in the private sector.[51] For the Association of First Division Civil Servants (FDA), the Government on this point is going for the "lowest common denominator", "rather than seeking means if required to enhance the rights of private sector employees".[52]

34. In this respect the proposals in the White Paper are more restrictive than overseas Freedom of Information legislation, which is often heavily used for gaining access to personnel records. It remains unclear to what extent the Data Protection Bill will provide individuals with access to their personnel records. It appears at present that the Data Protection Bill and the Directive on which it is based are likely to be interpreted quite widely, and therefore it may be that the attempt to restrict access under the Freedom of Information Act will be rendered pointless by the Data Protection Act. Clause 1 of the Bill defines "data" as information which "(a) is being processed by means of equipment operating automatically in response to instructions given for that purpose; (b) is recorded with the intention that it should be processed by means of such equipment, or (c) is recorded as part of a relevant filing system or with the intention that it should form part of a relevant filing system". "Relevant filing system" is defined as "any set of information relating to individuals to the extent that, although the information is not processed by means of equipment operating automatically in response to instructions given for that purpose, the set is structured, either by reference to individuals or by reference to criteria relating to individuals, in such a way that particular information relating to a particular individual is readily accessible".

35. The definition, Lord Williams said in the House of Lords, is "our best effort so far"; it contains three key elements: "one, the set of information must be structured; two, the structuring must be done by reference to individuals; and, three, particular information about particular individuals must be readily accessible. There is no doubt that that can be criticised as lacking certainty. It does not make it absolutely clear as to whether all personnel files will be covered, but the answer is that it depends on the way in which the files are structured and upon the ease of access to particular information. To give an example: a personnel file about a named individual which contains a miscellaneous set of papers filed in date order may not be caught. A personnel file about a named individual with nothing in it but annual staff reports may well be".[53] The Data Protection Registrar takes a rather different view about the extent of the files covered, however: the definition would cover "any manual record which is filed by reference to [an] individual, either his NI number or his name and where it is clear that every paper on that file relates to that individual".[54] In any case, there seems no particular reason why rights of access in the public and private sector should not be different and we believe that it is perfectly reasonable for them to be different. We recommend that personnel information should not be excluded from the Freedom of Information Act and that the Government should clarify the implications of the Data Protection Bill on the right of access to personnel records under Freedom of Information.

36. The insulation of certain functions from the right of access to information is, we believe, open to abuse. A very great number of bodies may hold some information which is covered by the Act, as well as some which is not. Where will the boundary lie? Could a public authority succeed in avoiding almost any exposure of its information by claiming that—for one reason or another—it all came under the (for example) law enforcement exclusion? In these circumstances, it would make it difficult for the Information Commissioner to challenge the exclusion, and force the body to justify non-disclosure. The White Paper says that the Commissioner will "not have any locus where the information concerned is not covered by the Act".[55] It is not clear to what extent it will be possible to challenge a claim of exclusion in the courts. As we have said above, we would prefer that there should not be any exclusions from the proposed Act; but we recommend that if any particular functions are to be excluded from the right of access, there should be a right of appeal to the Information Commissioner concerning whether the exclusion had been correctly claimed; the Information Commissioner should have the right of access to any records required in order to decide this question; and the exclusion should subsequently be testable through the courts.[56]

Exclusions: Parliament and the Security Services

37. We have not taken evidence on the exclusion of Parliament, which we expect to be the province of the Joint Committee on Parliamentary Privilege. We have, though, been somewhat surprised that it should be excluded. To the extent that Parliament's proceedings already take place in public, of course, the exclusion does not matter. The Government's background paper explains that inclusion might be taken to be "an implied repeal of the Bill of Rights which declares 'that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament'".[57] Proceedings of many Committees take place in private, and the privacy of these would need to be respected. However, the proposed exemption for the integrity of decision-making is likely to protect these discussions. The papers held by individual Members, parties and their Committees, do not relate to Parliament's public functions, and would therefore not, presumably, be covered by the Act, just as the political and constituency papers of government Ministers held in government departments will not be disclosable.[58] Papers sent by Members to Ministers and departments may well, however, be covered under the Act in any case. But there are many administrative functions carried out within Parliament which, it seems to us, do not need to be protected, any more than do those of the police. The justification for the exclusion of Parliament has not been made out. The exclusion may well convey the wrong impression to the general public, given the purpose of this legislation. We hope that the Joint Committee on Parliamentary Privilege will review this question, and we recommend that the Government re-examine the exclusion of Parliament in the light of its Report.

38. The other exclusion of this type is of the security and intelligence services: the Security Service, the Secret Intelligence Service, the Government Communications Headquarters and the Special Forces (SAS and SBS). The White Paper says that these organisations "could not carry out their duties effectively in the interests of the nation if their operations and activities were subject to freedom of information legislation".[59] In other Freedom of Information regimes such bodies are not always excluded. In the USA, Canada and New Zealand they are covered by Freedom of Information, but subject to the appropriate exemptions, not a blanket exclusion.[60] In the UK these bodies are not excluded from the Data Protection Act, although they have claimed an exemption from its requirements on grounds of national security under section 27. The Data Protection Registrar has argued, however, that they should not be exempt when dealing with matters that do not involve national security. The Campaign for Freedom of Information argued that the fact that the Security and Intelligence Services have become involved in more traditional types of police work strengthens the case for them to be covered. The Ombudsman has successfully claimed a right of access to security service files for his investigations (although the security services themselves are not within his jurisdiction).[61] The Home Secretary argued that "given the nature of the business in the Security Service, I do not believe that any part of what they do could come within the framework of the Freedom of Information regime ... if there were a breach in the exemption, that could undermine its operational effectiveness".[62]

39. We accept that almost all information relating to the Security and Intelligence Services would need to be withheld. Does this mean that they need to be excluded from the Act altogether? Exclusion prevents any external view being taken on whether there might be some cases in which the public interest would override the requirement of secrecy. There may be cases of miscarriage of justice or abuse of power, for example, which would never come to light except through the exercise of the public interest test. On the other hand, if the Services are not excluded, they may be subject to a large number of requests for information all, or almost all, of which will need to be considered; but all, or almost all, of which are almost certain to be turned down. Is there any point in wasting effort and resources in this way? We believe, however, that there is an important point of principle at stake, and that the work of the security services should, ultimately, be subject to a test of whether it is in the public interest that certain information is withheld. Therefore we recommend that the Security and Intelligence Services should not be excluded from the Freedom of Information Act.


36  para. 2.1. Back

37  para. 1.6. Back

38  Unprinted evidence (Campaign for Freedom of Information submission to the Cabinet Office). Back

39  para. 2.21. Back

40  Unprinted evidence (National Consumer Council submission to the Cabinet Office). Back

41  Q.92. Back

42  para. 2.2. Back

43  Unprinted evidence (Guild of Editors' submission to the Cabinet Office). Back

44  Q.510. Back

45  QQ. 510, 511. Back

46  para. 2.22. Back

47  Under Section 23 of the Canadian Act, this information is protected by a discretionary exemption. Back

48  Annual Report of the Canadian Information Commissioner, 1993-94, p.30, quoted in Min of Ev. p.31. Back

49  Re. Barings plc [1998] 1 All ER 673. Back

50  para. 2.20. Back

51  Min of Ev. p.31. Back

52  Unprinted evidence (FDA submission to the Cabinet Office). Back

53  HL Deb (1997-98) 586, cwh 12. Back

54  Q.220. Back

55  para. 5.10. Back

56  Although personal data are exempt from the provisions of the Data Protection Act if a Minister signs a certificate saying that it needs to be exempt on national security grounds, it is possible to appeal to the Data Protection Tribunal against the certificate, and the Tribunal can quash the certificate if it decides that, "applying the principles applied by the court on an application for judicial review, the Minister did not have reasonable grounds for issuing the certificate". Back

57  para. 23. Back

58  See para. 2.16. Back

59  para. 2.3. Back

60  Min of Ev. p.31. Back

61  Ninth Report of the Parliamentary Commissioner for Administration, Session 1994-95, Selected Cases 1995, Volume 4, Case A11/95. Back

62  Q.528. Back


 
previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries

© Parliamentary copyright 1998
Prepared 21 May 1998